ALJDEC decisions subject to certification as final

05F-2156-ROC-com · Registrar of Contractors · 2008-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 6 February 2008 APPEARANCES: Complainant: Dr. James Rand, M.D. Complainant. Respondent: Scott Jung, President, Owner and Qualifying Party, SRJ Construction & Design LLC. Others: Warren Duncan, Inspector, Arizona Registrar of Contractors; Jim Jordan, Electrical Contractor, Jack Rabbit Electric; Evan Rand, son of Complainant; Susan Evan, spouse of Complainant; Annette Schwab, Co-Owner, SRJ Construction. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ The Registrar of Contractors (“ROC”) ordered a Compliance Hearing held regarding the above-captioned case. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby issues the following Findings of Fact, Conclusions of Law, and Recommended Decision to the ROC.

FINDINGS OF FACT 1. The instant matter came to hearing pursuant to a decision of the Registrar of Contractors to hold a compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. Accordingly, the ROC issued a Notice of Compliance Hearing on 18 October 2007, which provided that the instant compliance hearing be conducted in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on March 2006 and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing. 2. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing. 3. The original hearing in this matter resulted in a settlement agreement reached by the parties. The terms of the settlement were read into the record during the original hearing, the essential terms of which were incorporated into the Order issued by the ROC on 15 March 2006. Said essential terms provided, in pertinent part, as follows:

A. Respondent will bring all electrical work into compliance with all applicable code provisions. B. Complainant’s expert, Harvey Lawrence, will inspect all electrical work upon completion by Respondent to ensure that said electrical work is in compliance with all applicable code provisions. C. Respondent will add necessary scuppers to the roof for proper drainage. D. Respondent will perform structural calculations concerning the air conditioning unit[s]. Upon completion, Respondent will perform any and all needed corrective work related thereto. E. Respondent will perform needed corrective work related to the duct work insulation as well as exterior duct work. F. Complainant’s expert will provide all reports generated concerning the home at issue in this matter to Respondent. G. Respondent will perform all of the above corrective work at its sole cost and expense. H. Respondent will pay the fees of Complainant’s expert, Mr. Lawrence, in the current amount of $7,500.00, as well as Mr. Lawrence’s future fees through and including inspection[s] and conclusion of this matter. I. Respondent will waive all amounts it claims Claimant owes it, in an amount in excess of $40,000.00 J. Claimant will waive all amounts it claims Respondent owes him, not listed herein, in an amount in excess of $40,000.00 K. If, in the course of the above expressed repairs, it becomes necessary or prudent for the Complainant to temporarily vacate the premises, Complainant will find alternate temporary housing at his own cost and expense. L. The parties agree that the work and payment required by this agreement shall be performed and completed within 60 days of the hearing date, February 6, 2006.

Although some of the corrective and remedial work items listed above were not completed within 60 days of the original hearing date (6 February 2006), the work has been substantially completed, which was confirmed by ROC Inspector Duncan during his 4 February 2008 pre-hearing inspection. Respondent either completed the work, or Respondent paid Complainant the cost of having Complainant hire some other contractor to complete the work. In addition, those fees and costs to be paid by Respondent listed above have been paid, with one notable exception regarding Complainant’s consultant’s fee indicated in the next paragraph. 4. Complainant requests that certain interest costs Complainant has incurred be recompensed by Respondent, that Respondent pay Complainant attorney’s fees in the amount of $8093.14, and that the final bill of Complainant’s consultant, Harvey J. Lawrence, in the amount of $261.97 be paid by Respondent. Respondent was unaware of the existence of this final bill from Mr. Lawrence until it was provided to him at the hearing.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The evidence adduced at hearing showed that there were certain deficiencies in the work undertaken by Respondent. However, notwithstanding such deficiencies, it is well established that construction and installation work, such as that at issue in this case, is not an exact or perfect science. It is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship, mistakes or miscalculations made prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. See ARS §32-1154(A)(23). 3. The instant matter is an administrative, disciplinary proceeding relating to a contractor’s license. The Registrar’s role in this matter is not one of a collection agency or judicial tribunal, but merely one duty-bound to determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a complainant the right to receive any particular individualized relief or an order imposing any particular discipline. Specifically, there is no provision for the imposition of interest costs in either the settlement between the parties in this case, nor in the sanctions authorized to be imposed by the ROC. In addition, the awarding of attorney’s fees pursuant to A.R.S. § 12- 341-01 applies to courts of record, not administrative law hearings, and any such award would have to issue from just such a court. 4. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated the provisions of the settlement agreement referred to in the ROC Order of 15 March 2006, in any substantial or material respect, with the exception of the $261.97 final bill of Complainant’s consultant Harvey J. Lawrence, of which Respondent was unaware.

RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order on Compliance Hearing entered in this matter, that the Class B license of Respondent shall be suspended until the ROC receives written proof satisfactory to the ROC that Respondent has paid Complainant $261.97. It is further recommended that if Respondent pays Complainant said amount on or before the effective date of the Order on Compliance Hearing entered in this matter, then the aforementioned license suspension shall not take place. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification. Done this day, February 26, 2008

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826